Wednesday, October 19, 2011

Water & the Feds

It's nothing new - the tug of war over who has what say over water.

One recent foray has been the Clean Water Restoration Act (earlier blog post) where Congress had been debating a seemingly small amendment to the Federal Water Pollution Control Act - that of merely changing the phrase "navigable waters" to "waters of the United States". To some, this small change would have significantly broadened EPA's regulatory control over water, and this is why EPA wanted it so bad. It was a direct assault on the right of the states to control and manage their waters. The other side argued the amendment simply corrected what had always been intended by Congress, so it wasn't really any expansion of EPA authority at all. This bill had been a lightning rod in 2009 and 2010, and according to Thomas, it did not survive the 111th Congress. Moreover, I haven't been able to find any version of this bill in the 112th Congress either. It was introduced in 2009 by Senator Feingold, who did not survive the 2010 elections.

I have also been wary of other more subtle Federal activities regarding, not the direct control of water, but the direction of water policy at the federal level. It almost appears as if the feds have taken the position that if you can't get control of the water itself, the next best thing is to tell everyone what the water policy is going to be. Take a close look at the federally organized and appointed Water Information Coordination Program (WICP) (earlier blog post). This is by no means a direct foray into water control, but seems headed toward being a subtle process to direct and impose various aspects of a desired federal water policy on the states. The specific element I looked at related to a sustainable water use policy. Warning, this is a very intricate arrangement of committees, subcommittees and programs reporting to programs, so it's really hard to follow. One sub group sanctioned by WICP is the Advisory Committee on Water Information (ACWI), which is organized into 8 sub committees - one of which is the sub committee on Sustainable Water - whose mission statement is:

"Serve as a forum to share information and perspectives that will promote better decision making in the U.S. regarding the sustainability of our nation's water resources."

Notice how this federally led group starts out their mission statement with a respectable and appropriate federal responsibility - that of discussing and sharing perspectives to promote better decision making - then seals the statement with what they think that policy should be - sustainable water resources. If no one questions the mission statement this group simply has to point the train. It's the classic approach of "hearts and minds", which eventually changes policy and law. No federal group should be telling Kansas or any other state what their water policy should be, or is to be - even if it is a good policy. My second post on this process. If Kansans want a sustainable water resources policy, they'll make that happen.

The final example goes back to February, 1942 when the Republican River Compact was being debated by Congress as H.R. 5945. By this time all three states (Kansas, Colorado and Nebraska) had ratified the compact. Up steps the Federal Power Commission, who had not been party to the compact to date, with Compact amendments that were disturbing to at least Colorado. Clifford Stone, Director of the Colorado Conservation Board was updating his board on the Legislative process and put it this way in his February 19, 1942 memo:

Apparently, the Federal Power Commission desires to reserve the right some time in the future to declare the river navigable in law, although not navigable in fact, in order that federal control and regulation may be interposed to prevent the control of consumptive uses for irrigation and other beneficial purposes under state law. This we do not believe to be the proper nor acceptable position toward western states which control water for irrigation under state laws. It represents the activity on the part of some federal bureaus and departments to disregard state laws under the fiction of "navigability in law". If such a policy is carried too far, it will threaten the water rights on many streams of the West which, as you know, constitute property rights.

As it turned out, Congress did not adopt any of the Power Commission's amendments. But, as a result, is it any wonder why non-federal entities cast wary eyes upon Washington? I'd guess there must be hundreds of these kinds of activities if one had the time to research it enough. But that takes a lot of effort and stamina. And it takes an almost equal effort to keep keeping up the vigil.

Sometimes I wish the federal government and its agencies would quit scheming and conniving over the control of water and introduce a clear and direct bill in Congress to take full control of the waters of the US, or mandate a sustainable water resource policy on all states and territories, or whatever it is they really want to do. Then Congress can settle the water control issues once and for all and we can all get some productive work done. Hey, that gives me an idea....

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By GMD 4 District Manager

Welcome to the GMD 4 blog. I manage the Northwest Kansas Groundwater Management District No. 4 which covers 3.11 million acres in all or parts of 10 Counties overlying the High Plains Aquifer (Ogallala).
Everything published here are my own ramblings on watery things I find interesting - even some of our own GMD work from time to time. Comments are welcome, but please try to make them helpful, informative and on-point. Finally, if you've come into the blog somewhere in the middle, just click the Banner to go to the Front Page.